Articles

They are not Arbiters of Good Taste

Building surveyors often become embroiled in building disputes as defendants and third parties.

Even though a search of case law will reveal a number of decisions where building surveyors have been found culpable, they seem to have become “claytons defendants” in some instances “the defendants you have when you don’t have a defendant.”

They are principal actors and are involved in an overwhelming majority of building projects in the state of Victoria. They issue the building permit, carry out the inspections and issue the occupancy permits or the certificates of final inspections.

The ‘north of three-storey exemption’ where you can’t sue builders (this exemption is under review in some jurisdictions) hasn’t helped either, for it has meant that absent the ability to pursue warranty cover in builder insolvencies, building surveyors find themselves under added scrutiny.

The legislature intended that building surveyors play an important, if not critical role in the enforcement of building regulations. However, the legislature never contemplated that building surveyors would become the ‘fall guy’ for all things that are found wanting in the as built product.

Some plaintiffs adopt a pretty cavalier approach to suing building surveyors. Aspirational litigants should ensure that when they decide to sue a building surveyor they do so in circumstances where the cause of action is built on very solid legal foundations.

The basis of some lawsuits against building surveyors is misconceived. Building surveyors are not arbiters of good taste, and here’s where Senior Member Davis has come to the rescue, stating precisely that which building surveyors do not do:

“The role of the Building Surveyor/Building Inspector is outlined in the Building Act and Building Regulations. A Building Surveyor/Building Inspector is not engaged to design, construct, project manage, act as a site foreman, clerk of works, supervisor for any part, of any construction process.” [1]

“The Building Surveyor/Building Inspector does not have any ‘overriding duty’ but has a specified, finite responsibility to ensure compliance with the minimum standards of the Building Code.” [2]

Building surveyors can also rely upon section 238 compliance certificates issued by prescribed classes of building practitioners such as engineers or building inspectors that certify that the work complies with the relevant aspect of the BCA. As long as the reliance upon the compliance certificate is in good faith, the building surveyor enjoys a statutory immunity and is exonerated from liability attached to that certificate.

One of the paramount roles of a building surveyor is to carry out a final inspection and issue an occupancy permit when the owner or the builder considers the building work is completed. Just because the building surveyor issues an occupancy permit doesn’t mean at law that the building surveyor assumes the liability for a whole host of defective work related acts, errors or omissions on the part of other actors.

On Occupancy Permit is not evidence that the building or part of a building to which it applies complies with this Act or the building regulations

Section 46 of the Building Act is very carefully worded and provides that an occupancy permit is: “evidence that the building or part of a building to which it applies is suitable for occupation…but is not evidence that the building or part of a building to which it applies complies with this Act or the building regulations.”

The legislation is quite clear in emphasising two key points:

• an occupancy permit is issued when the building is suitable for occupation
• an occupancy permit is not evidence that the building work complies with the Act

Senior Member Davis stated that he accepted the evidence of an expert witness in the case, who opined that:

“it is not the role of the a building surveyor or inspector to assure for aesthetics, quality, durability, reliability of workmanship on behalf of the owner and/or the builder. Weatherproofing, waterproofing are specific issues dependent upon quality workmanship and the reliability of products, these are the responsibility of the builder and product manufacturer.” [3]

After all, under Acts of Parliament like the Domestic Building Contracts Act, there are statutory warranties that make it crystal clear that the builder has to build well and warrant the quality and the suitability of the as built product.

You may wish to read Senior Member Davis’ findings and seminal utterances very, very carefully because they are quite profound. Profound in the sense that if anyone is intent upon joining “the defendant you have when you don’t have a defendant” on the basis of a whim or a misconceived “industry practice,” then member Davis’ findings should give one pause.

The last thing a consumer wants is to issue proceedings against a building surveyor when the grounds to do so are shallow, as costs may be visited upon the unsuccessful plaintiff.

References

[1] Lewis v Threadwell [2004] VCAT 547, para 138.

[2] Lewis v Threadwell [2004] VCAT 547, para 132.

[3] Lewis v Threadwell [2004] VCAT 547, para 139.

Lovegrove & Cotton: Leaders in Building Practitioner Advocacy

Lovegrove & Cotton are experts in construction law and building practitioner legal representation in Melbourne, Sydney, the ACT and Queensland. Justin Cotton has represented building practitioners and building surveyors successfully for nearly fifteen years and has established leading precedents in Australian tribunals. If the reader knows of anybody who needs legal representation in this complex jurisdiction, feel free to contact our practice manager and construction and planning lawyer, Tsigereda Lovegrove.

Click here to learn more about Lovegrove and Cotton and practitioner advocacy. Follow the below links for further articles:

Prosecutable Offences Under the Building Act 1993 (Vic)

The Duty of Care of Certifying Authorities to Owners of Residential Buildings: How Far Does it Go?

What does a building surveyor do in Victoria?

Disclaimer

This article is not legal advice and discusses it’s topic in only general terms. Should you be in need of legal advice, please contact Lovegrove & Cotton Lawyers and our experienced lawyers will assist you based on the facts and circumstances of your case.